Relief from DEPORTATION: VAWA Cancellation

By Monica Ganjoo

QUESTION:  What is VAWA Cancellation of Removal?
ANSWER:  VAWA Cancellation of Removal provides a deportation defense to domestic violence victims who are in removal proceedings in immigration court.  These individuals are in front of an immigration judge, and the Government is trying to remove them from the United States.  While it is not a new defense, many individuals, including attorneys, do not know much about it.
QUESTION:  What eligibility do you have to show in order to apply for VAWA Cancellation in immigration court?
ANSWER:  You must show the following six items:  1) Battery or extreme cruelty by a United States citizen or Legal Permanent Resident (green card holder) or battery to your child if that child is also the child of a United States citizen or Legal Permanent Resident; 2) Physical presence in the United States for three or more years before the VAWA application and notice to appear for removal proceedings (if it can be shown that any absence was connected to the violence experienced, this is not a bar to filing for VAWA); 3) Good moral character while in the United States (there are exceptions for acts or convictions that are tied to the violence suffered by the applicant); 4) Not otherwise inadmissible or deportable under the immigration law; 5) No convictions of aggravated felonies; AND 6) Evidence that removal would result in extreme hardship to the applicant, the child of the applicant, or the parent of the applicant.
QUESTION:  Who can apply for the VAWA Cancellation?
ANSWER:  The following individuals are eligible to apply:  1) Former spouse or child of United States citizen or Legal Permanent Resident, regardless of when death, divorce, or termination of parent-child relationship occurred; 2) Former or current spouse or child of someone who was formerly a United States citizen or Legal Permanent Resident, but has lost that status for any reason; or 3) Individual with child in common with former United States citizen or Lawful Permanent Resident, where the child in common was abused by the United States citizen or Lawful Permanent Resident.
QUESTION:  What is the difference between VAWA Cancellation and VAWA I-360?  
ANSWER:  There are several differences.  The main difference is that you can apply for VAWA Cancellation only if you are in removal proceedings (in front of an immigration judge).  Unlike the I-360, where the decision is to be decided by the Citizenship and Immigration Services, the VAWA Cancellation is to be decided by the immigration judge.  VAWA Cancellation can be applied for people that do not qualify for the I-360.  The following individuals can apply for VAWA Cancellation, even though they are not qualified to apply for the VAWA I-360:  1) Abused spouse who was divorced for over two years from the abuser; 2) Abused spouse of Legal Permanent Resident who has died or any abused children of a United States Citizen or Legal Permanent Resident parent who has died; 3) Parent of an abused child who was never married to the child’s abusive United States citizen or Legal Permanent Resident parent; 4) Abused stepchild whose immigrant parent has been divorced from the abusive parent for over two years; 5) Abused spouse or child whose citizen parent gave up citizenship or lost Legal Permanent Resident status for over two years; 6) Victims of incest or child abuse who were abused while they were under 21, but failed to file I-360 and who are now over 21; 7) Victims of child abuse who cannot establish that they have resided with the abuser.
QUESTION:  What do I have to provide to the immigration court?
ANSWER:  You must show that you had a relationship with the abuser by providing evidence such as marriage and/or birth certificates, depending on the relationship you had with the abuser.  You must provide evidence to prove that you were continuously present in the United States for a period of three years prior to filing your applicant.  You must prove that during your stay in the United States, you were subject to extreme cruelty or abuse by the United States citizen or Legal Permanent Resident.  You must prove that you are a person of good moral character and that you or your abused child or your parent will suffer from extreme hardship if you are deported from the United States.  
QUESTION:  What is the most difficult part of the VAWA Cancellation?
ANSWER:  The most difficult evidence to show in court is that extreme hardship will exist if the applicant is forced to be removed from the United States.  The following items can be shown as evidence:  1) The need for access to the United States court system, such as criminal justice system and family courts in order to support child support, maintenance, and custody agreements; 2) The need for medical services not readily available in the country that applicant is to be deported to; 3) The laws or customs in the country that the applicant is to be deported to that would penalize the applicant or his/her children for being domestic violence victims; 4) The abuser’s ability to follow the applicant to the country that he/she is to be deported to; 5) The chance that the abusers family or friends could victimize the applicant or his/her children in the country that the applicant is to be deported to.
QUESTION:  What do you do if you are not in removal proceedings (in front of an immigration judge) but you want to apply for VAWA Cancellation?
ANSWER:  You can turn yourself in to the United States Immigration and Customs Enforcement (ICE) and request to be placed in deportation/removal proceedings.  Do NOT take this step without consulting with an immigration attorney.  Once you are placed in deportation/removal proceedings, you will then be required to appear in court.  At this point, you can apply for the VAWA Cancellation, along with supporting evidence, in order to prove your case.  You will then have a hearing.  The immigration judge with then decide whether or not to grant you this relief.  If granted, you will obtain your Legal Permanent Resident (green card) status.  If denied, and you do not have other avenues to becoming legal, then you will receive a removal order.  
For more information, call Attorney Monica Ganjoo for a consultation.
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco or San Jose for only $25 (phone consultations also available for $50).  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA  94102
(415) 495-3710

111 W. St. John Street, Suite 513
San Jose, CA  95113
(408) 975-0500

Did you obtained an immigrant visa as single but actually married?

By Crispin Lozano

 

If you obtained an immigrant visa as single son or daughter of a Lawful Permanent Resident or a U. S. citizen but you are actually married at the time of your entry to the U. S., you committed a misrepresentation of material fact in obtaining a visa because you did not disclose your marital status at the time of the interview and/or at the time you entered the United States.  Even if you are actually single at the time of the interview but you get married the day before entering the U. S. you still committed a misrepresentation. Although you have a document which is your green card, your actual status is that of a person not in possession of a valid visa.  An alien not in possession of a valid visa is inadmissible and deportable.  If you applied for naturalization the USCIS will likely find it out.  Your naturalization application will be denied and you will be sent to an Immigration Judge for removal proceedings.
Question: Mario was petitioned by Jose, his father who is a Lawful Permanent Resident in 1985.  His father became a U.S. citizen in 1993.  Mario got married to Linda in 1988.  Mario and Linda have a child born in 1989 named Cindy. In 1991, Mario was interviewed at the U. S. Embassy, Manila for an immigrant visa.  He declared that he was single and has no child.  Based on this declaration he was given a visa and entered the U. S. in 1992.  Mario married Linda again in 1993 and filed an immigrant visa petition for his wife and daughter.  The petition was denied because the USCIS discovered his prior marriage to Linda in 1988 and he committed a misrepresentation of material fact by not disclosing his marriage to Linda in 1988 and the existence of his daughter.  Mario received a Notice to Appear to the Immigration Court.  What is Mario’s immigration status?
Answer: Mario committed a fraud or misrepresentation of material fact in obtaining a visa at the U.S. Embassy.  By entering the U.S. without disclosing his marriage and children is again a misrepresentation to the U.S. Immigration Officer.  These two acts of misrepresentation made Mario inadmissible and deportable.
Question: What is the relief available to Mario?
Answer: Mario may request the immigration court for a waiver of the misrepresentation. To avail of this waiver Mario must have a parent or son or daughter who is Lawful Permanent Resident or U.S. citizen.
Note: This is not a legal advice.
Immigration News  
1. On November 7, 2011, we received an approval from the Immigration Court for waiver of misrepresentation for a person who entered the U.S. as single but actually married.  The person can now apply with naturalization.

Immigration Questions and Answers

By Beverly Byrd

Question:  Hello Attorney Byrd.  My husband wants to apply for naturalization, but he is on probation for a disturbing the peace conviction he received because of an argument with a neighbor.  Can he still apply for naturalization, or will this cause him problems?  Thank you Attorney.  God bless.  Ma. Teracita.
Answer:  Hello Teracita.  Thank you for your question.  USCIS is prohibited from naturalizing an applicant who is on probation.  However, the application could be filed while an applicant is on probation, and potentially approved if the applicant is no longer on probation when the decision is made.  As it takes approximately 3 to 4 months to currently have a naturalization interview scheduled, your husband would have some limited time for his probation to end, or to make a motion to the criminal court to have his probation terminated early.  He should speak with his criminal defense attorney regarding early termination.  He should also speak with a competent immigration attorney to assess his naturalization case and ensure that his conviction, and any other convictions that may exist, will not cause problems for his naturalization case.  Good luck.
To ask Attorney Byrd an immigration question and have your answer appear in the weekly column, please e-mail Attorney Byrd at bab@byrdassociates.com.  Though we usually receive a large number of inquiries, we will make every effort to reply to all questions.
Immigration News and Updates
H-1B Numbers Almost Exhausted
The maximum number of cap subject H-1B visa is almost reached.  If you are planning to file for an H-1B visa, you should do so immediately to prevent losing your opportunity.  Contact a competent immigration attorney to help you and your employer file.
Car Impoundments for
Persons Here Illegally
Governor Jerry Brown signed a new law that prevents unnecessary car impoundments that severely harm immigrant families in California.  It allows drivers pulled over for non-DUI offenses to obtain a licensed driver to remove the car before the checkpoint ends and thus avoid impoundments, which are typically for 30 days and result in the forfeiture of the car since towing and impoundment fees commonly exceed the value of the vehicle.
Misdemeanors Now Not as Serious in Two Local Counties
Sacramento and Santa Clara County District Attorneys have developed policies to infract misdemeanor convictions (making them infractions rather then misdemeanors, thus less serious) to prevent undocumented immigrants from entering the criminal justice system.  Examples:  driving without a license and driving with a suspended license.  The DA in Santa Clara County is considering infracting petty thefts.
Attorney Beverly Byrd received a Master’s in International Law from the prestigious Georgetown University law Center in Washington, D.C.  Philippines President Arroyo and U.S. President Bill Clinton are alumni of Georgetown. Attorney Byrd has practiced only immigration law for over 10 years.  She has helped thousands of Filipinos in the Bay Area with their immigration issues.  
Currently, Byrd & Associates offers a consultation with Attorney Byrd for $25.  Please feel free to contact Attorney Byrd via e-mail at bab@byrdassociates.com, or via telephone at either of her Bay Area two offices found below.  You can also visit our website to read our immigration Blog, follow us on Facebook and Twitter and see our LinkedIn profile.
San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113   
Toll Free 800-794-4546  
San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
Toll Free 800-794-4546

Immigration Question of the Week

By Atty Beverly Byrd

Question:  Hello Attorney Byrd.  I hope you could answer my question.  I’m always informed by your column.  I’ve been in the U.S. since my parents brought me here in 2006, and have no legal status.  A few years ago, I was attacked by several young men that I didn’t know after leaving a gym in San Jose.  I was stabbed in the stomach, and left on the sidewalk.  My attackers were ultimately caught by the police and prosecuted.  My cousin told me that I might qualify for a U visa.  Is this true?  Thank you Attorney Byrd.  Ted.

Answer:  Hello Ted.  First, I’m sorry to hear about the terrible events that happened to you, and I am hope that you have no ill effects from the attack.  You may be able to qualify for a U visa, as it seems likely that your attack was a felonious assault.  First, please see the information below, and if you think that you may qualify, then second, see a competent immigration attorney.
 

Immigration Topic of the Week:  U Visas
Are you or have you been the victim of a crime?  You might qualify for a U Visa.

The purpose of a U Visa is to give victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years.  The U visa is a nonimmigrant visa, and only 10,000 U visas may be issued every fiscal year.  Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents.  An approved U visa petition will automatically grant the applicant work eligibility in the United States.

An applicant for a U visa must have suffered substantial physical or mental abuse due to a criminal activity in a t least one of the following categories:  rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

All petitions must include information on how the victim can or did assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to, or did work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.

A portion of U visa application must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

Immigration News and Updates
New USCIS Medical Form
For those filing a green card application, you should be aware that USCIS has a new medical form, Form I-693 as of November 1, 2011.  To ensure no delays in your green card case, ensure that your Civil Surgeon, or USCIS approved physician, uses the new form.  Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.  If a medical examination completed on or after Jan. 1, 2012, is reported using an outdated form, USCIS will reject the form, requiring the applicant to return to the civil surgeon and resubmit the new form.  

Update on the New ICE Policy on Prosecutorial Discretion
The Chief Counsel’s office that handles cases in the San Francisco immigration court appears to be approving requests to administratively close deportation cases for young persons who were brought to the U.S. with their parents while still minors, are in the U.S. without legal status and who are currently attending college.  If this applies to you or your family member, seek the advice of a competent immigration attorney to determine whether it is appropriate to try to close your deportation case.

Attorney Beverly Byrd received a Master’s in International Law from the prestigious Georgetown University law Center in Washington, D.C.  Philippines President Arroyo and U.S. President Bill Clinton are alumni of Georgetown. Attorney Byrd has practiced only immigration law for over 10 years.  She has helped thousands of Filipinos in the Bay Area with their immigration issues.  

Currently, Byrd & Associates offers a consultation with Attorney Byrd for $25.  Please feel free to contact Attorney Byrd via e-mail at bab@byrdassociates.com, or via telephone at either of her Bay Area two offices found below.  You can also visit our website to read our immigration Blog, follow us on Twitter and Facebook and see our LinkedIn profile.

San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113  
Toll Free 800-794-4546  

San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
Toll Free 800-794-4546

Visa Bulletin for November of 2011

 By Atty Monica Ganjoo

Question: What is the Visa Bulletin?
Answer: The Visa Bulletin provides us the priority dates for Family Petitions.  For example, if you are a United States citizen and you have filed for a green card for your brother, it usually takes 23 years (11 for other countries; 23 for Filipinos) for your brother to be able to come to the United States with a green card.  The Visa Bulletin shows you what date the Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) is working on.  If you filed on April 10, 1993, you have to look at the 4th category of the Visa Bulletin for Philippines, and you will see that CIS is currently working on August 22, 1988.  There is a five year difference between these numbers, which means that the estimated time that your brother will be able to come to the United States with a green card through your petition is more or less five years.
Question: What is the First preference category?
Answer: The First preference category applies to children over the age of 21 of United States citizens.  These children must be single.  For Filipinos, the priority date for the month of November is February 8, 1997.
Question: What is the Second (A) preference category?
Answer: This category belongs to spouses and unmarried, single children under the age of 21 of Legal Permanent Residents.  For Filipinos, the priority date for the month of November is February 15, 2009.
Question: What is the Second (B) preference category?
Answer: This category belongs to children of Legal Permanent Residents that are over 21, but are still single.  For Filipinos, the priority date for the month of November is July 15, 2001.
Question: What is the Third preference category?
Answer: This category belongs to married children of United States citizens.   If a child of a United States citizen is under 21 but is married, they will fall under this category.  For Filipinos, the priority date for the month of November is June 22, 1992.
 Question: What is the Fourth preference category?
Answer: This category belongs to brothers and sisters of United States citizens.  These beneficiaries will be able to bring their spouses and all unmarried children under the age of 21 with them.  For Filipinos, the priority date for the month of November is August 22, 1988.
 Question: What if I am a Legal Permanent Resident, and I filed a family petition for my daughter two years ago when she was 23, and she just got married?
Answer: When you filed for your daughter, you filed for her under the Second (B) preference category.  If you are still a Legal Permanent Resident at the time your daughter got married, your petition for her will be cancelled.  However, if you became a United States citizen before your daughter got married, then your petition for her is still valid, but the preference category will be changed from Second (B) to Third.
 Question: What if I filed for my son under the Second (B) category, and then I became a United States citizen?  Is it true that it will take my son five years longer to come to the United States only because I became a United States citizen?
Answer: In the past, this was true.  However, under Section 6 of the Child Status Protection Act, you can choose to keep your old priority date.  You will have to send a letter to the National Visa Center as well as one to the United States Embassy in Manila stating that you wish to keep your old priority dates.  Please take note that both petitioner and beneficiary will have to write these letters and the letters must be notarized.
 Question: What if I am a United States citizen and I filed for my sister when she was single, and now she is married?
Answer: Your sister will be able to come to the United States with her husband, and any child that they will have (as long as the child is single and is under the age of 21 at the time of emigration).
 Question: Can I file for my parents if I am a Legal Permanent Resident?  What about my siblings?
Answer: No.  If you are a Legal Permanent Resident, you may only apply for spouses and single children.  You may not apply for your parents, married children, or siblings.
 Question: What is the priority date for a United States citizen filing for parents?
Answer: There is no priority date for spouses, parents, and single children under the age of 21 of United States citizens.  This means that it should take less than a year for these individuals to immigrate to the United States (some cases take longer for various issues).
For more information, call Attorney Monica Ganjoo for a consultation.  
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo for only $25.  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a $25 consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA  94102
(415) 495-3710

111 W. Saint John Street,
Suite 513
San Jose, CA  95113
(408) 975-0500

What is the effect of bankruptcy in my credit score?

 By Atty Crispin Lozano

Question: Will filing bankruptcy damage severely my credit score?
Answer: If you are already 60 to 120 days late in payments bankruptcy will not significantly damage your credit score because you are already low end of the curve.  Credit score is a record of all your credit transactions and is determined by many factors such as late payments, high credit balances, charged off accounts, collection accounts and many more.  All late payments will be in your credit report for seven years until you file bankruptcy.  When you file for bankruptcy, these debts will be marked as “included in Chapter 7 or 13 bankruptcy” instead of being reported with so many late payments.  
By the time you are considering bankruptcy your credit score is already in the 500 range and by filing bankruptcy the reduction in credit score will not be very much.  In reality, after filing bankruptcy your credit score will improve because of the following:
1. The negative reporting of late payments and non-payments will not be reported anymore in your credit.
2. If you file bankruptcy you can start building your credit just after your bankruptcy discharge because there will be no more late payments the lenders will be reporting.
3. If you managed your credit well after bankruptcy, you can achieve a credit score of around 700 within two or three years.
4. Historically, when buying secured properties such as house or car, you would be given credit within three years.  Under the current economic situation when credit is hard to find even for those with a 700 credit score find it hard to borrow money.  Good credit and bad credit does not make big difference nowadays when it comes to borrowing money because banks are not lending at all.
5. You can use your own bank debit card in place of credit card for the first few years after bankruptcy.
6. You can get a secured credit card by depositing money to the credit card company so that you can have a credit card.  This will help you build your credit score.
7. You will have more cash after discharge from bankruptcy because you will no longer be paying bills you were paying before.  Hence, your need for credit is basically eliminated.
Question:   Can I still rent an apartment if I file bankruptcy?
Answer: Yes.  If you intend to rent an apartment, the apartment manager understands the present economic condition where many people filed for bankruptcy.  In order for you to be approved to rent the apartment you may be required or you may offer to increase the security deposit as guarantee for payment of rent.  
Question: Will my employer fire me if I file bankruptcy?
Answer: No.  Government units and private employers cannot fire you for filing bankruptcy because it will be an act of discrimination and it is illegal. 
Note: This is not a legal advice.
Bankruptcy News
1. If you are being sued by your creditors, most money judgment can be eliminated in bankruptcy.
2. Collection actions continue and you can be sued if you are in debt settlement.
3. Chapter 7 will eliminate all unsecured debts.  If you are near retirement age, you must eliminate most of your debts.
4. Bankruptcy will stop foreclosure actions.  If your trustee sale date is 10 days before, you can still file for bankruptcy.
5. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.
6. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.
7. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.

Immigration Questions and Answers

By Atty Byrd

 

Question:  Hello Attorney Byrd.  Thank you for your weekly column, and your advice to our community.  My cousin was brought here with her parents when she was 3 years old.  She is in college now.  Can she benefit from the new immigration policy that we’ve been reading about?  Thank you Attorney Byrd.  Fernando
Answer:  Hello Fernando.  Thank you for your question. It’s great that your cousin is able to continue her education.  Unfortunately, as your cousin is not in deportation proceedings, and apparently not in imminent danger of being placed in deportation proceedings, there is nothing for your cousin to benefit from at the moment.  There is no official Dream Act at the moment.  I have been asked by some clients if it is to their advantage to turn themselves into ICE.  The general answer is a resounding “No.”  Your cousin, and any other readers contemplating turning themselves into ICE should consult with a competent immigration attorney, and preferably one who focuses on deportation, before they come into contact with ICE.  Stay tuned, however, as ICE’s policies continue to evolve.
Question:  Hi Attorney Byrd.  I and my friends read your column every week, and find it very informative.  I have a question that I hope you can answer.  My sister’s husband died last year, and she filed on her own for a green card as a widow of a U.S. citizen.  She now has a green card interview in Las Vegas in December.  Should she have had two interviews for the petition and the green card, and does she need to show any documents about her marriage since her husband can’t be there?  Thanks Attorney.  God Bless. Jocelyn
Answer:  Hello Jocelyn.  Thank you for your question.  I’m sorry to hear the sad news about your sister’s husband.  Yes, the widow of a U.S. citizen is able to self-petition for a green card by filing Form I-360.  This form is filed at the same time as the green card application, and USCIS will schedule just one interview to make a decision on both forms.  Your sister does have to prove that she and her husband married in good faith.  The interviewing officer will want to see documents proving that they lived as a real married couple, such as a joint lease or mortgage, joint utility bills, joint health, life or auto insurance, and photographs among other things. 
IMMIGRATION NEWS
Good News!  Santa Clara County Making it Harder for Immigrants to be Put in Deportation Proceedings
In what has been heralded as the most progressive policy in the nation, Santa Clara County voted last week in a new set of guidelines for civil immigration detainers, which in effect ends the county’s collaboration with Immigration and Custom Enforcement (ICE). An official stated that Santa Clara County now has the most progressive policy in this field, and ” the whole nation will be looking at Santa Clara County as it makes it official: we don’t do ICE’s job.” Civil immigration detainers are requests from ICE to the county to detain jailed individuals after the completion of their sentence from a criminal charge in order for them to get picked up for immigration detention and deportation proceedings.
For immigrant advocates and county officials, the new policy -- which will only honor detainer request if, “there is a written agreement with the federal government by which all costs incurred by the County in complying with the ICE detainer will be reimbursed” -- is a way to exert local control in the face of a controversial federal ICE program called Secure Communities. Having been rolled out in 2008, Secure Communities uses fingerprints gathered at jails to notify ICE agents of immigration status of individuals to then initiate detainer requests.
The program has received pushback from counties and states who say Secure Communities violates targeted individuals' constitutional protections, places financial hardships on cash-strapped counties, and jeopardizes public safety by making immigrant communities fearful of law enforcement. In describing the often contentious relationship with ICE regarding Secure Communities, Supervisor Dave Cortese said, “Frankly, there has been a lack of integrity from ICE on these issues. Today, we are sending a message, one county at a time, you need to fix what’s broken before you ask us to enforce bad laws.”
Attorney Beverly Byrd has exclusively practiced U.S. immigration law at Byrd & Associates for over ten years, helping thousands in the Filipino community.  She obtained a law degree and then graduated with a Master’s in International Law from the prestigious Georgetown University Law Center in Washington, D.C.  Georgetown Alumni include Philippine President Gloria Arroyo and President Bill Clinton.
Attorney Byrd is also active in the immigrant community, and has served on the American Immigration Lawyer’s Association’s Extended Board for the past several years as a liaison to the DHS San Francisco Asylum Office, DHS Customs and Border Protection, DHS Immigration and Customs Enforcement, and currently as the Continuing Legal Education liaison.
Attorney Byrd currently offers for a limited time a $25 consultation on the phone or in the office.  Please contact her to schedule a consultation via e-mail at info@byrdassociates.com, or call toll free 877-987-9906.  You can also see her website at www.byrdassociates.com for more information and to read her immigration blog, see her LinkedIn profile and follow her on Twitter.

San Jose Office  
95 S. Market Street, Suite 300
San Jose, CA 95113 
877-987-9906   

San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
877-987-9906

Visa Bulletin for November of 2011

 By Atty Monica Ganjoo

Question: What is the Visa Bulletin?
Answer: The Visa Bulletin provides us the priority dates for Family Petitions.  For example, if you are a United States citizen and you have filed for a green card for your brother, it usually takes 23 years (11 for other countries; 23 for Filipinos) for your brother to be able to come to the United States with a green card.  The Visa Bulletin shows you what date the Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) is working on.  If you filed on April 10, 1993, you have to look at the 4th category of the Visa Bulletin for Philippines, and you will see that CIS is currently working on August 22, 1988.  There is a five year difference between these numbers, which means that the estimated time that your brother will be able to come to the United States with a green card through your petition is more or less five years.
Question: What is the First preference category?
Answer: The First preference category applies to children over the age of 21 of United States citizens.  These children must be single.  For Filipinos, the priority date for the month of November is February 8, 1997.
Question: What is the Second (A) preference category?
Answer: This category belongs to spouses and unmarried, single children under the age of 21 of Legal Permanent Residents.  For Filipinos, the priority date for the month of November is February 15, 2009.
Question: What is the Second (B) preference category?
Answer: This category belongs to children of Legal Permanent Residents that are over 21, but are still single.  For Filipinos, the priority date for the month of November is July 15, 2001.
Question: What is the Third preference category?
Answer: This category belongs to married children of United States citizens.   If a child of a United States citizen is under 21 but is married, they will fall under this category.  For Filipinos, the priority date for the month of November is June 22, 1992.
Question: What is the Fourth preference category?
Answer: This category belongs to brothers and sisters of United States citizens.  These beneficiaries will be able to bring their spouses and all unmarried children under the age of 21 with them.  For Filipinos, the priority date for the month of November is August 22, 1988.
Question: What if I am a Legal Permanent Resident, and I filed a family petition for my daughter two years ago when she was 23, and she just got married?
Answer: When you filed for your daughter, you filed for her under the Second (B) preference category.  If you are still a Legal Permanent Resident at the time your daughter got married, your petition for her will be cancelled.  However, if you became a United States citizen before your daughter got married, then your petition for her is still valid, but the preference category will be changed from Second (B) to Third.
Question: What if I filed for my son under the Second (B) category, and then I became a United States citizen?  Is it true that it will take my son five years longer to come to the United States only because I became a United States citizen?
Answer: In the past, this was true.  However, under Section 6 of the Child Status Protection Act, you can choose to keep your old priority date.  You will have to send a letter to the National Visa Center as well as one to the United States Embassy in Manila stating that you wish to keep your old priority dates.  Please take note that both petitioner and beneficiary will have to write these letters and the letters must be notarized.
Question: What if I am a United States citizen and I filed for my sister when she was single, and now she is married?
Answer: Your sister will be able to come to the United States with her husband, and any child that they will have (as long as the child is single and is under the age of 21 at the time of emigration).
Question: Can I file for my parents if I am a Legal Permanent Resident?  What about my siblings?
Answer: No.  If you are a Legal Permanent Resident, you may only apply for spouses and single children.  You may not apply for your parents, married children, or siblings.
Question: What is the priority date for a United States citizen filing for parents?
Answer: There is no priority date for spouses, parents, and single children under the age of 21 of United States citizens.  This means that it should take less than a year for these individuals to immigrate to the United States (some cases take longer for various issues).
For more information, call Attorney Monica Ganjoo for a consultation.  
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo for only $25.  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a $25 consultation with Monica Ganjoo, call one of her offices below:
870 Market Street, Suite 340
San Francisco, CA  94102
(415) 495-3710
111 W. Saint John Street,
Suite 513
San Jose, CA  95113
(408) 975-0500

Should I pay my second mortgage if my house is underwater?

 By Atty Crispin Lozano

The most common question of homeowners if they have a residence that is underwater is “Should I pay my second mortgage?”  To illustrate, assume that Juan and Maria bought a house in 2006 worth $500,000 with a financing of 80/20 or a first loan of $400,000 and a second loan of $100,000.  The house now has a market value of $300,000.  Under this situation the first loan is collateralized up to $300,000 whereas the second loan has no collateral.  A lender can foreclose in California if the mortgage is not being paid.  In foreclosure actions, lender foreclose only if there if a value in the collateral.  Under this situation the second loan has no collateral because of the reduction in property value.  Only the first loan has collateral.  For practical purposes the second mortgage holder will not foreclose on the house because it will not get any money in doing so.
Question: How can a homeowner totally eliminate the second mortgage?
Answer: Filing Chapter 13 Bankruptcy will allow a homeowner to strip the lien on the second mortgage.  The result of lien stripping is that the second mortgage of $100,000 above will be considered an unsecured loan.  Unsecured loan are like credit cards where no collateral is attached to the loan.  In Chapter 13, the unsecured loan will be paid based on the monthly disposable income of the debtor.  If the disposable income is just sufficient to pay secured creditors, the unsecured creditors will only get a minimal percent of whatever is left in the disposable income.
Question: If I file for Chapter 13, will the lender of the first and second mortgage be able to foreclose?
Answer: Once you are approved on your Chapter 13 plan of payments which include paying the arrears on the first mortgage over three to five years and continuously paying the current monthly payments for the first mortgage, the lender will not foreclose on your house.  The second mortgage lender will not also foreclose because once the lien is stripped, the loan becomes unsecured.  However, you have to complete the plan payments.  Failure to pay plan payments will cause your case to be dismissed.
Note: This is for presentation purposes only and not a legal advice.  
Bankruptcy News
1. If you are being sued by your creditors, most money judgment can be eliminated in bankruptcy.
2. Collection actions continue and you can be sued if you are in debt settlement.
3. Chapter 7 will eliminate all unsecured debts.  If you are near retirement age, you must eliminate most of your debts.
4. Bankruptcy will stop foreclosure actions.  If your trustee sale date is 10 days before, you can still file for bankruptcy.
5. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.
6. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.
7. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.
Immigration News
1. On September 22, 2011, we received an approval from USCIS for adjustment of status using cross chargeability that enabled the beneficiary to use the worldwide priority date (which is faster) instead of the Philippines priority date.
2. On August 30, 2011, we received an approval from Immigration Court of an adjustment of status for an alien who was denied the adjustment of status from another attorney.
3. On July 28, 2011, we received an approval of adjustment of status for an alien who entered the U. S. without valid documents but qualified under Sec. 245(i).
4. On July 21, 2011 we received an approval for withholding of removal in Immigration court for an old lady who could not come back to her country because of political situation.
5. On June 28, 2011, we received an approval in Immigration Court for an adjustment of status.  The applicant was previously denied on the I-130 petition because they did it without an attorney.  We filed a second I-130 petition that was approved based on good faith marriage.
6. On March 1, 2011, we received an approval of adjustment of status by an Immigration Judge for an alien who was originally denied adjustment of status based on petition by employer.
7. On January 25, 2011, we received an approval of a self-petition by a battered spouse.  Her entry with a different name was forgiven.
8. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.
9. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
10. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.
11. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.
Crispin Caday Lozano was born in the Philippines and a naturalized U.S. citizen.  He is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys.  He specializes in immigration law and bankruptcy law.  He earned his Juris Doctor at Western State University College of Law in Fullerton, California.  He is also a Certified Public Accountant, a Real Estate Broker and a Bachelor of Business Administration Cum Laude graduate.  He has four offices which are located in Hayward, San Jose, and Cerritos, California.  You can contact him at telephone number 1-877-456-9266.  Email your questions to LozanoLawOffice@crispinlozanolaw.com/; visit our website at www.crispinlozanolaw.com/

Immigrant Visa granted ten years ahead of the beneficiary's priority date -- The spouses Gerald and Sharmilee Abello received their green cards ten years ahead of the beneficiary's priority date with the help of Attorney Crispin C. Lozano.  Gerald was petitioned by his US citizen father on March 20, 2001 as Married son of a U.S. citizen under the third preference F-3.  His wife was born in Fiji Islands Republic.  Under the current visa processing, if Gerald will use the Philippine priority date of March 20, 2001, it will take ten more years of waiting before he will get his green card and also for his wife.  Atty. Crispin C. Lozano argued that Gerald is entitled to use the priority date under the Worldwide Visa Bullentin which currently processes March 2001 because that will allow his wife, who was born in Fiji Islands, to get an immigrant visa and it will prevent the separation of the husband and wife.    The USCIS approved their case based on this legal argument.

Immigration News and Questions

By Atty Beverly Byrd

IMMIGRATION QUESTIONS
Question:  Thank you for your column Attorney Byrd.  My wife and I read it every week.  I would like to know if I can file for naturalization, or U.S. citizenship, if my green card is expired?  Kind regards, Ernesto.
Answer:  Thank you for your question Ernesto.  The answer is no.  USCIS requires that your permanent resident card have at least six months validity left on the card for you to file for naturalization.  You should first file to renew your permanent resident card and obtain a temporary permanent resident stamp in your passport from USCIS
Question:  I am a non-conditional lawful permanent resident and my green card expired last month.  I have filed an I-90 Application to Replace Permanent Resident Card with the United States Citizenship and Immigration Services (USCIS).  I am awaiting the arrival of my new card.  My employer wants to re-verify my employment and will not accept my expired card as evidence that I am a legal permanent resident.  I do not have any other proof of residence.  What can I do?
Answer:  The fact that your permanent resident card is expired does not mean you are no longer a lawful permanent resident.  The card may be expired, but your lawful permanent residence status is not expired.
You can show your employer the I-90 receipt saying that you have filed to replace your card.  You can also make an appointment with the nearest USCIS office and ask them to stamp your passport with temporary evidence of lawful permanent residence, or you can ask the USCIS office to put an extension sticker on your expired permanent resident card, then show the passport or card to your employer.
IMMIGRATION POLICY UPDATE
The American Immigration Lawyer’s Association (AILA) has conducted preliminary research to determine how local ICE offices and Chief Counsel offices have been implementing the new Obama Administration’s enforcement priorities and whether they have been granting requests for prosecutorial discretion.  It appears that many offices are moving forward with business as usual, and are making no attempts to review cases to determine which might be administratively closed.  
In San Francisco, the Chief Counsel’s office (government attorney) has a policy to contest Motions to Continue for those in deportation proceedings in order to await a decision for prosecutorial discretion from the Chief Counsel’s office.  It would be up to the immigration judge to grant or deny the request.  This means that if one plans to ask for prosecutorial discretion and close their case, that it should be done as soon as possible before the next court hearing in order for the government to decide the motion.  Seek a competent immigration attorney to further explain requests for prosecutorial discretion and how you might benefit from such a request.
Attorney Beverly Byrd has exclusively practiced U.S. immigration law at Byrd & Associates for over ten years, helping thousands in the Filipino community.  She obtained a law degree and then graduated with a Master’s in International Law from the prestigious Georgetown University Law Center in Washington, D.C.  Georgetown Alumni include Philippine President Gloria Arroyo and President Bill Clinton.
Attorney Byrd is also active in the immigrant community, and has served on the American Immigration Lawyer’s Association’s Extended Board for the past several years as a liaison to the DHS San Francisco Asylum Office, DHS Customs and Border Protection, DHS Immigration and Customs Enforcement, and currently as the Continuing Legal Education liaison.
Attorney Byrd currently offers for a limited time a $25 consultation on the phone or in the office.  Please contact her to schedule a consultation via e-mail at info@byrdassociates.com, or call toll free 877-987-9906.  You can also see her website at www.byrdassociates.com for more information and to read her immigration blog, see her LinkedIn profile and follow her on Twitter.
San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113   
(Toll Free) 877-987-9906  
San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
(Toll Free) 877-987-9906

Visa Bulletin for October of 2011

By Atty Monica Ganjoo

Question: What is the Visa Bulletin?

Answer: The Visa Bulletin provides us the priority dates for Family Petitions.  For example, if you are a United States citizen and you have filed for a green card for your brother, it usually takes 23 years (11 for other countries; 23 for Filipinos) for your brother to be able to come to the United States with a green card.  The Visa Bulletin shows you what date the Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) is working on.  If you filed on April 10, 1993, you have to look at the 4th category of the Visa Bulletin for Philippines, and you will see that CIS is currently working on August 1, 1988.  There is a five year difference between these numbers, which means that the estimated time that your brother will be able to come to the United States with a green card through your petition is more or less five years.

Question: What is the First preference category?

Answer: The First preference category applies to children over the age of 21 of United States citizens.  These children must be single.  For Filipinos, the priority date for the month of October is January 8, 1997.
Question: What is the Second (A) preference category?
Answer: This category belongs to spouses and unmarried, single children under the age of 21 of Legal Permanent Residents.  For Filipinos, the priority date for the month of October is January 8, 2009.

 Question: What is the Second (B) preference category?

Answer: This category belongs to children of Legal Permanent Residents that are over 21, but are still single.  For Filipinos, the priority date for the month of October is May 1, 2001.

Question: What is the Third preference category?

Answer: This category belongs to married children of United States citizens.   If a child of a United States citizen is under 21 but is married, they will fall under this category.  For Filipinos, the priority date for the month of October is June 8, 1992.

Question: What is the Fourth preference category?

Answer: This category belongs to brothers and sisters of United States citizens.  These beneficiaries will be able to bring their spouses and all unmarried children under the age of 21 with them.  For Filipinos, the priority date for the month of October is August 1, 1988.

 Question: What if I am a Legal Permanent Resident, and I filed a family petition for my daughter two years ago when she was 23, and she just got married?

Answer: When you filed for your daughter, you filed for her under the Second (B) preference category.  If you are still a Legal Permanent Resident at the time your daughter got married, your petition for her will be cancelled.  However, if you became a United States citizen before your daughter got married, then your petition for her is still valid, but the preference category will be changed from Second (B) to Third.
 Question: What if I filed for my son under the Second (B) category, and then I became a United States citizen?  Is it true that it will take my son five years longer to come to the United States only because I became a United States citizen?

Answer: In the past, this was true.  However, under Section 6 of the Child Status Protection Act, you can choose to keep your old priority date.  You will have to send a letter to the National Visa Center as well as one to the United States Embassy in Manila stating that you wish to keep your old priority dates.  Please take note that both petitioner and beneficiary will have to write these letters and the letters must be notarized.

 Question: What if I am a United States citizen and I filed for my sister when she was single, and now she is married?

Answer: Your sister will be able to come to the United States with her husband, and any child that they will have (as long as the child is single and is under the age of 21 at the time of emigration).

 Question: Can I file for my parents if I am a Legal Permanent Resident?  What about my siblings?
Answer: No.  If you are a Legal Permanent Resident, you may only apply for spouses and single children.  You may not apply for your parents, married children, or siblings.

 Question: What is the priority date for a United States citizen filing for parents?

Answer: There is no priority date for spouses, parents, and single children under the age of 21 of United States citizens.  This means that it should take less than a year for these individuals to immigrate to the United States (some cases take longer for various issues).

For more information, call Attorney Monica Ganjoo for a consultation.  
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo for only $25.  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a $25 consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA  94102
(415) 495-3710
111 W. Saint John Street,
Suite 513
San Jose, CA  95113
(408) 975-0500

Stock market crashed again. Are you ready for the next recession?

 By Crispin Lozano

The stock market crashed again last week to a low level since 2008.  According to many economists, the next recession or great depression will be very painful and worldwide.  Consider the following events:
1. The U.S. national debt of $14 Trillion is equal to 100% of our gross domestic product. The U. S. economy will only grow 2% this year with unemployment rate of 9.1%.  U. S. was downgraded to AA+ by Standard and Poor and the stock market crashed thereafter. The last great depression started with the stock market crash followed by high unemployment.  Many banks are in distressed and home values continue to decline.  Layoffs in the government and private sector are continuing.
2. The European nation is in the brink of economic decline as a result of the debt crisis in Greece, Portugal, Ireland, Spain and Italy.  Since the Euro zone is the major trading partner of the U.S., exports will decrease that will result in layoffs in the U. S.
Question: What are the ways to prepare for the next recession?
Answer: Some suggestions from money experts are as follows:
1. Eliminate or reduce debt.  Short term interest rate on credit cards run as high as 20 to 30%.  By eliminating debt your chance of surviving the recession will increase.
2. Build up on cash.  Whatever happens in the economy, cash is the best means of surviving the recession.  Increase savings by 10 to 15% of your income.
3. Stay liquid.  Allocate your assets into more liquid investments such as savings account, CDs and money market funds.
4. Avoid risky investments such as stocks and bonds.  Postpone any investment in stocks until the market bottom is reached.  Stocks are predicted to go down by about 30% because of the debt crisis.
5. Postpone buying a new car or house.  This will drain the cash you will need in case of emergency.
6. Have a contingency plan.  This should include a plan to reduce your expenses and increase your income.  Eliminate all unnecessary expenses and improve your skill through education and training to improve your ability to generate income.
7. Postpone retirement if you can so that you can increase your retirement fund.
Question: What is the most common way to eliminate debt to survive recession or the great depression?
Answer: If you are saddled with huge amount of debt with high interest rate, filing bankruptcy is the most common way of eliminating debt to survive recession.
Note: This is not a legal advice.
Bankruptcy News
1. If you are being sued by your creditors, most money judgment can be eliminated in bankruptcy.
2. Collection actions continue and you can be sued if you are in debt settlement.
3. Chapter 7 will eliminate all unsecured debts.  If you are near retirement age, you must eliminate most of your debts.
4. Bankruptcy will stop foreclosure actions.  If your trustee sale date is 10 days before, you can still file for bankruptcy.
5. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.
6. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.
7. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.
Immigration News
1. On September 22, 2011, we received an approval from USCIS for adjustment of status using cross chargeability that enabled the beneficiary to use the worldwide priority date (which is faster) instead of the Philippines priority date.
2. On August 30, 2011, we received an approval from Immigration Court of an adjustment of status for an alien who was denied the adjustment of status from another attorney.
3. On July 28, 2011, we received an approval of adjustment of status for an alien who entered the U. S. without valid documents but qualified under Sec. 245(i).
4. On July 21, 2011 we received an approval for withholding of removal in Immigration court for an old lady who could not come back to her country because of political situation.
5. On June 28, 2011, we received an approval in Immigration Court for an adjustment of status.  The applicant was previously denied on the I-130 petition because they did it without an attorney.  We filed a second I-130 petition that was approved based on good faith marriage.
6. On March 1, 2011, we received an approval of adjustment of status by an Immigration Judge for an alien who was originally denied adjustment of status based on petition by employer.
7. On January 25, 2011, we received an approval of a self-petition by a battered spouse.  Her entry with a different name was forgiven.
8. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.
9. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
10. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.
11. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.
Crispin Caday Lozano was born in the Philippines and a naturalized U.S. citizen.  He is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys.  He specializes in immigration law and bankruptcy law.  He earned his Juris Doctor at Western State University College of Law in Fullerton, California.  He is also a Certified Public Accountant, a Real Estate Broker and a Bachelor of Business Administration Cum Laude graduate.  He has four offices which are located in Hayward, San Jose, and Cerritos, California.  You can contact him at telephone number 1-877-456-9266. www.crispinlozanolaw.com/ 

Immigration News and Questions

By Atty Byrd

IMMIGRATION QUESTIONS

Question:  Hi Attorney Byrd.  I have a question that I hope you can answer in your column.  I always read your column, and am happy for the advice that you give.  My sister-in-law sponsored my husband’s brother for an immigrant visa many years ago, and now the National Visa Center has requested an Affidavit of Support.  My sister-in-law and her husband do not make enough money as her husband is currently unemployed and she works only part-time.  She has asked me to be a joint sponsor.  If I do it, what is my obligation?  I want to help, but am concerned about my long-term obligations.  Thank you Attorney Byrd.  Noemi

Answer:  Thank you for your question Noemi.  Your concern is legitimate.  If some one files an Affidavit of Support as a joint sponsor that joint sponsor is jointly obligated to repay the federal government, if asked, any federal means-tested benefit.  A federal means-tested benefit is something similar to food stamps or welfare.
That obligation lasts until either the person who received the green card passes away, leaves the country permanently, can be credited with 20 qualifying quarters of social security or naturalizes.  Most obligations end when the green card holder naturalizes.

Question:  Hi Attorney Byrd.  My brother was just taken into custody by ICE in Las Vegas last week.  He had a domestic violence charge in 2006.  He’s very anxious to get out of immigration jail, but I called the immigration court in Las Vegas, and the court doesn’t have a case for him yet.  Is there anything that we can do to get him out sooner rather than later?  My whole family is so upset, including my elderly and ill mother.  Thank you Attorney Byrd.  God Bless, Maria.

Answer:  Hello Maria.  I’m sorry to hear of the difficulties in your family.  In regards to your brother’s custody, your immigration attorney can file a Motion to Set a Bond Hearing with the Las Vegas immigration court, even before the case is filed with the court.  The immigration court clerk will call ICE in Las Vegas and confirm that your brother is in custody.  The Court is a bit backlogged at present because they are short a judge, and it may be a few weeks before a hearing can be scheduled.  You should obtain a competent immigration attorney to help your brother with the bond hearing and his deportation defense.  He will need to show that he will appear for his future scheduled deportation hearings, and that he is not a danger to the community.  Good luck to your brother.

IMMIGRATION LAW AND ADVOCACY UPDATE
Tell Governor Brown to Sign AB 131:  California Dream Act that would help students in the Filipino Community

In July, Governor Brown approved AB 130, the first part of the California Dream Act, allowing AB 540 students to access private financial aid.  AB 131 is far more significant for the 25,000 AB 540-eligible students who graduate from high school each year.  These students would be eligible for (1) Board of Governors (BOG) fee waivers, (2) institutional student aid like a State University Grant or a UC Grant, and (3) Cal Grants, but Competitive Cal Grants would only be available if funding remains after all California resident students have received their awards.  
AB 131 passed both state houses and on September 13 was presented to the Governor.  Call Governor Brown at 916-445-2841 and tell him to sign AB 131.  You do not need to speak to anyone, as the call is automated:

1. Select desired language English, press 1 and Spanish press 2)
2. Press 2 for casting a vote on legislation
3. Press 1 for voting on The CA Dream Act, AB 131
4. Lastly, press 1 to vote “IN SUPPORT” of AB 131
Attorney Beverly Byrd has exclusively practiced U.S. immigration law at Byrd & Associates for over ten years, helping thousands in the Filipino community.  She obtained a law degree and then graduated with a Master’s in International Law from the prestigious Georgetown University Law Center in Washington, D.C.  Georgetown Alumni include Philippine President Gloria Arroyo and President Bill Clinton.
Attorney Byrd is also active in the immigrant community, and has served on the American Immigration Lawyer’s Association’s Extended Board for the past several years as a liaison to the DHS San Francisco Asylum Office, DHS Customs and Border Protection, DHS Immigration and Customs Enforcement, and currently as the Continuing Legal Education liaison.
Attorney Byrd currently offers for a limited time a $25 consultation on the phone or in the office.  Please contact her to schedule a consultation via e-mail at info@byrdassociates.com, or call toll free 877-987-9600.  You can also see her website at www.byrdassociates.com for more information and to read her immigration blog, see her LinkedIn profile and follow her on Twitter.
San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113   
(Toll Free) 877-987-9600  

San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
(Toll Free) 877-987-9600

Visa Bulletin for October of 2011

By Monica Ganjoo

Question: What is the Visa Bulletin?
Answer: The Visa Bulletin provides us the priority dates for Family Petitions.  For example, if you are a United States citizen and you have filed for a green card for your brother, it usually takes 23 years (11 for other countries; 23 for Filipinos) for your brother to be able to come to the United States with a green card.  The Visa Bulletin shows you what date the Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) is working on.  If you filed on April 10, 1993, you have to look at the 4th category of the Visa Bulletin for Philippines, and you will see that CIS is currently working on August 1, 1988.  There is a five year difference between these numbers, which means that the estimated time that your brother will be able to come to the United States with a green card through your petition is more or less five years.

Question: What is the First preference category?
Answer: The First preference category applies to children over the age of 21 of United States citizens.  These children must be single.  For Filipinos, the priority date for the month of October is January 8, 1997.

Question: What is the Second (A) preference category?
Answer: This category belongs to spouses and unmarried, single children under the age of 21 of Legal Permanent Residents.  For Filipinos, the priority date for the month of October is January 8, 2009.

Question: What is the Second (B) preference category?
Answer: This category belongs to children of Legal Permanent Residents that are over 21, but are still single.  For Filipinos, the priority date for the month of October is May 1, 2001.

Question: What is the Third preference category?
Answer: This category belongs to married children of United States citizens.   If a child of a United States citizen is under 21 but is married, they will fall under this category.  For Filipinos, the priority date for the month of October is June 8, 1992.

Question: What is the Fourth preference category?
Answer: This category belongs to brothers and sisters of United States citizens.  These beneficiaries will be able to bring their spouses and all unmarried children under the age of 21 with them.  For Filipinos, the priority date for the month of October is August 1, 1988.

Question: What if I am a Legal Permanent Resident, and I filed a family petition for my daughter two years ago when she was 23, and she just got married?
Answer: When you filed for your daughter, you filed for her under the Second (B) preference category.  If you are still a Legal Permanent Resident at the time your daughter got married, your petition for her will be cancelled.  However, if you became a United States citizen before your daughter got married, then your petition for her is still valid, but the preference category will be changed from Second (B) to Third.

Question: What if I filed for my son under the Second (B) category, and then I became a United States citizen?  Is it true that it will take my son five years longer to come to the United States only because I became a United States citizen?
Answer: In the past, this was true.  However, under Section 6 of the Child Status Protection Act, you can choose to keep your old priority date.  You will have to send a letter to the National Visa Center as well as one to the United States Embassy in Manila stating that you wish to keep your old priority dates.  Please take note that both petitioner and beneficiary will have to write these letters and the letters must be notarized.

Question: What if I am a United States citizen and I filed for my sister when she was single, and now she is married?
Answer: Your sister will be able to come to the United States with her husband, and any child that they will have (as long as the child is single and is under the age of 21 at the time of emigration).

Question: Can I file for my parents if I am a Legal Permanent Resident?  What about my siblings?
Answer: No.  If you are a Legal Permanent Resident, you may only apply for spouses and single children.  You may not apply for your parents, married children, or siblings.

Question: What is the priority date for a United States citizen filing for parents?
Answer: There is no priority date for spouses, parents, and single children under the age of 21 of United States citizens.  This means that it should take less than a year for these individuals to immigrate to the United States (some cases take longer for various issues).

For more information, call Attorney Monica Ganjoo for a consultation.  
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo for only $25.  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a $25 consultation with Monica Ganjoo, call one of her offices below:
 

870 Market Street, Suite 340
San Francisco, CA  94102
(415) 495-3710

111 W. Saint John Street,
Suite 513
San Jose, CA  95113
(408) 975-0500

Are real property taxes discharged in bankruptcy?

By Crispin Lozano

Question: Can I discharge the real estate taxes due on my house if I file bankruptcy?
Answer: Real estate taxes are considered secured debts because it includes personal liability and lien on the property subject to the tax.  In bankruptcy, only the personal liability is discharged.  The lien on the property is still attached until it is paid.  If you intend to keep the property, then you must pay the real estate tax.  If you intend the property to be foreclosed by the bank, the bank or the new owner will have to pay the real estate tax.
 

Question: In what situation may a real estate tax be discharged?
Answer: You can only discharge your personal liability on real estate tax if the tax is due more than one year by the time you file bankruptcy.  Although your personal liability is discharged, since real estate taxes are secured debts, the lien on the property is still attached and cannot be discharged in bankruptcy.  If you intend to keep your house you will have to settle it before you can sell or transfer the property with clean title.
 

Question: What will happen if I was discharged in bankruptcy and I did not pay the real estate tax?
Answer: The government can foreclose your house without court permission to settle the unpaid taxes.  Therefore it is important to settle the real estate taxes due if you want to keep your house.
 

Bankruptcy News
1. If you are being sued by your creditors, most money judgment can be eliminated in bankruptcy.
2. Collection actions continue and you can be sued if you are in debt settlement.
3. Chapter 7 will eliminate all unsecured debts.  If you are near retirement age, you must eliminate most of your debts.
4. Bankruptcy will stop foreclosure actions.  If your trustee sale date is 10 days before, you can still file for bankruptcy.
5. If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.
6. Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.
7. Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.
 

Immigration News
1. On August 30, 2011, we received an approval from Immigration Court of an adjustment of status for an alien who was denied the adjustment of status from another attorney.
2. On July 28, 2011, we received an approval of adjustment of status for an alien who entered the U. S. without valid documents but qualified under Sec. 245(i).
3. On July 21, 2011 we received an approval for withholding of removal in Immigration court for an old lady who could not come back to her country because of political situation.
4. On June 28, 2011, we received an approval in Immigration Court for an adjustment of status.  The applicant was previously denied on the I-130 petition because they did it without an attorney.  We filed a second I-130 petition that was approved based on good faith marriage.
5. On March 1, 2011, we received an approval of adjustment of status by an Immigration Judge for an alien who was originally denied adjustment of status based on petition by employer.
6. On January 25, 2011, we received an approval of a self-petition by a battered spouse.  Her entry with a different name was forgiven.
7. On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.
8. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
9. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.
10. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.
Crispin Caday Lozano was born in the Philippines and a naturalized U.S. citizen.  He is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys.  He specializes in immigration law and bankruptcy law.  He earned his Juris Doctor at Western State University College of Law in Fullerton, California.  He is also a Certified Public Accountant, a Real Estate Broker and a Bachelor of Business Administration Cum Laude graduate.  He has four offices which are located in Hayward, San Jose, and Cerritos, California.  You can contact him at telephone number 1-877-456-9266.

Immigration News and Questions

By Beverly Byrd

Labor Certification—Just Because You Can, Doesn’t Always Mean You Should

Question:  Hello Attorney Byrd.  Thank you for your weekly column, and your advice to our community.  I want to know whether I should file for a labor certification.  My aunt is willing to sponsor me as a caregiver in her care home.  I last came to the U.S. in 2006 as a visitor, and have been out of status since 2007.  My aunt consulted with a known law firm, and they want to charge us about $15,000 for the total process.  I thought I read something in your column last year about being careful of the labor certification process.  Should I file?  Thank you for your help Attorney.  Guido.   

Answer: Thank you for your question Guido.  A labor certification is a prerequisite to receiving a green card through employment.  It does not give a person a legal right to work, or a legal immigration status.  An immigrant petition for a worker is also a prerequisite for a green card through employment, and it also does not give a legal right to work or legal status.  After these two are approved, then a person may be able to file for a green card.  

Whether that person can file for a green card in the U.S. generally depends on whether that person has a legal immigration status at the time of filing.  If that person is not in status at the time of filing, then the green card application would be denied.  The only time that a person should file for a green card through employment when that person is in the U.S. with no status is when that person is covered under 245(i).  This means that that person is the direct or indirect beneficiary of an I-130, I-140 or labor certification filed before April 30, 2001.  If a person is not 245(i) qualified, then that person can not receive a green card in the U.S. 

To answer your question Guido, if you last arrived as a visitor to the U.S. in 2006, that status ended in 2007, and you do not qualify under 245(i), then you should not apply for a labor certification, petition or green card.  As well, if you are sponsored as a care giver, you may not have a labor certification approved as the employer should stop the process when they find an able, willing and qualified U.S. citizen or permanent resident worker who can do the job.  Even if you did have an approved labor certification, and have 245(i) eligibility, it would be many years before your priority date would be current and you could actually file for a green card.

There are many unethical attorneys out there, who may state that they can file a labor certification for you, and some could even be approved.  What they don’t tell you, unethically so, is that the approved labor certification and petition will NEVER help you obtain a green card if you have no 245(i) eligibility.  Moreover, Guido, $15,000 for a labor certification and petition is very over priced.  I highly suggest that you speak to another competent and reputable immigration attorney who can advise you on your specific circumstances.  Take care.  

IMMIGRATION NEWS

Good News—Children of K-1 Fiancée Now Protected From Aging Out After They Enter the U.S.!  
In its June decision in Matter of Le, the Board of Immigration Appeals resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. Previously, the Department of Homeland Security denied many adjustment of status applications, or green card applications for children who entered as a K-2, arguing that the K-2 child was ineligible for a green card because they had turned 21 after entering the U.S, but before the green card application was decided. Now, as long as a K-2 child is under 21 and enters the U.S., they can still obtain a green card as a K-2 even if they later turn 21 before the green card application is decided.

Beware—If ICE Takes You Into Custody, They Don’t Have to Tell You Your Rights!

The Board of Immigration Appeals recently held that noncitizens arrested without a warrant need not be advised of their rights under immigration regulation 8 C.F.R. 287.3(c)—including their right to an attorney and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. A Notice to Appear is the document that formally places a person in deportation or removal proceedings.  Be aware that if you are taken into ICE custody and questioned, what you say can be used against you later.  Ask for immigration counsel before answering any questions.
Attorney Beverly Byrd has exclusively practiced U.S. immigration law at Byrd & Associates for over ten years, helping thousands in the Filipino community.  She obtained a law degree and then graduated with a Master’s in International Law from the prestigious Georgetown University Law Center in Washington, D.C.  Georgetown Alumni include Philippine President Gloria Arroyo and President Bill Clinton. 

Attorney Byrd is also active in the immigrant community, and has served on the American Immigration Lawyer’s Association’s Extended Board for the past several years as a liaison to the DHS San Francisco Asylum Office, DHS Customs and Border Protection, DHS Immigration and Customs Enforcement, and currently as the Continuing Legal Education liaison.

Attorney Byrd currently offers for a limited time a $25 consultation on the phone or in the office.  Please contact her to schedule a consultation via e-mail at info@byrdassociates.com, or call toll free 877-987-9600.  You can also see her website at www.byrdassociates.com for more information and to read her immigration blog, see her LinkedIn profile and follow her on Twitter.

San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113   
877-987-9600    

San Francisco Office
One Embarcadero Center, Suite 500
San Francisco, CA 94111
877-987-9600

Relief from DEPORTATION: VAWA Cancellation

By Monica Ganjoo

QUESTION: What is VAWA Cancellation of Removal?

ANSWER: VAWA Cancellation of Removal provides a deportation defense to domestic violence victims who are in removal proceedings in immigration court. These individuals are in front of an immigration judge, and the Government is trying to remove them from the United States. While it is not a new defense, many individuals, including attorneys, do not know much about it.

QUESTION: What eligibility do you have to show in order to apply for VAWA Cancellation in immigration court?

ANSWER: You must show the following six items: 1) Battery or extreme cruelty by a United States citizen or Legal Permanent Resident (green card holder) or battery to your child if that child is also the child of a United States citizen or Legal Permanent Resident; 2) Physical presence in the United States for three or more years before the VAWA application and notice to appear for removal proceedings (if it can be shown that any absence was connected to the violence experienced, this is not a bar to filing for VAWA); 3) Good moral character while in the United States (there are exceptions for acts or convictions that are tied to the violence suffered by the applicant); 4) Not otherwise inadmissible or deportable under the immigration law; 5) No convictions of aggravated felonies; AND 6) Evidence that removal would result in extreme hardship to the applicant, the child of the applicant, or the parent of the applicant.

QUESTION: Who can apply for the VAWA Cancellation?

ANSWER: The following individuals are eligible to apply: 1) Former spouse or child of United States citizen or Legal Permanent Resident, regardless of when death, divorce, or termination of parent-child relationship occurred; 2) Former or current spouse or child of someone who was formerly a United States citizen or Legal Permanent Resident, but has lost that status for any reason; or 3) Individual with child in common with former United States citizen or Lawful Permanent Resident, where the child in common was abused by the United States citizen or Lawful Permanent Resident.

QUESTION: What is the difference between VAWA Cancellation and VAWA I-360?

ANSWER: There are several differences. The main difference is that you can apply for VAWA Cancellation only if you are in removal proceedings (in front of an immigration judge). Unlike the I-360, where the decision is to be decided by the Citizenship and Immigration Services, the VAWA Cancellation is to be decided by the immigration judge. VAWA Cancellation can be applied for people that do not qualify for the I-360. The following individuals can apply for VAWA Cancellation, even though they are not qualified to apply for the VAWA I-360: 1) Abused spouse who was divorced for over two years from the abuser; 2) Abused spouse of Legal Permanent Resident who has died or any abused children of a United States Citizen or Legal Permanent Resident parent who has died; 3) Parent of an abused child who was never married to the child’s abusive United States citizen or Legal Permanent Resident parent; 4) Abused stepchild whose immigrant parent has been divorced from the abusive parent for over two years; 5) Abused spouse or child whose citizen parent gave up citizenship or lost Legal Permanent Resident status for over two years; 6) Victims of incest or child abuse who were abused while they were under 21, but failed to file I-360 and who are now over 21; 7) Victims of child abuse who cannot establish that they have resided with the abuser.

QUESTION: What do I have to provide to the immigration court?

ANSWER: You must show that you had a relationship with the abuser by providing evidence such as marriage and/or birth certificates, depending on the relationship you had with the abuser. You must provide evidence to prove that you were continuously present in the United States for a period of three years prior to filing your applicant. You must prove that during your stay in the United States, you were subject to extreme cruelty or abuse by the United States citizen or Legal Permanent Resident. You must prove that you are a person of good moral character and that you or your abused child or your parent will suffer from extreme hardship if you are deported from the United States.

QUESTION: What is the most difficult part of the VAWA Cancellation?

ANSWER: The most difficult evidence to show in court is that extreme hardship will exist if the applicant is forced to be removed from the United States. The following items can be shown as evidence: 1) The need for access to the United States court system, such as criminal justice system and family courts in order to support child support, maintenance, and custody agreements; 2) The need for medical services not readily available in the country that applicant is to be deported to; 3) The laws or customs in the country that the applicant is to be deported to that would penalize the applicant or his/her children for being domestic violence victims; 4) The abuser’s ability to follow the applicant to the country that he/she is to be deported to; 5) The chance that the abusers family or friends could victimize the applicant or his/her children in the country that the applicant is to be deported to.

QUESTION: What do you do if you are not in removal proceedings (in front of an immigration judge) but you want to apply for VAWA Cancellation?

ANSWER: You can turn yourself in to the United States Immigration and Customs Enforcement (ICE) and request to be placed in deportation/removal proceedings. Do NOT take this step without consulting with an immigration attorney. Once you are placed in deportation/removal proceedings, you will then be required to appear in court. At this point, you can apply for the VAWA Cancellation, along with supporting evidence, in order to prove your case. You will then have a hearing. The immigration judge with then decide whether or not to grant you this relief. If granted, you will obtain your Legal Permanent Resident (green card) status. If denied, and you do not have other avenues to becoming legal, then you will receive a removal order.
For more information, call Attorney Monica Ganjoo for a consultation.

Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco or San Jose for only $25 (phone consultations also available for $50). The Staff of Ganjoo Law Offices speak a total of six different languages. For a consultation with Monica Ganjoo, call one of her offices below:

870 Market Street, Suite 340
San Francisco, CA 94102
(415) 495-3710
111 W. St. John Street, Suite 513
San Jose, CA 95113
(408) 975-0500

May Illegal Aliens file bankruptcy?

By Crispin Lozano

Question: Is there a requirement to file for bankruptcy that you must be a legal alien or citizen?

Answer: There is no requirement in the Bankruptcy Code that requires legal status in the United States to file for bankruptcy. A debtor could be any person in the United States who has a Social Security Number or Taxpayer Identification Number (TIN) with valid Identification Document and a valid address.

Question: Does the creditors knew that some debtors filing bankruptcy are illegal aliens?

Answer: The banks have issued bank accounts to people who do not have a valid social security number but have Taxpayer Identification Number. They must have known that persons who do not have social security number and working based on Taxpayer Identification Number must have lacked legal papers to stay in the United States.

Question: What precautions must illegal aliens do before filing bankruptcy?

Answer: Before you file for bankruptcy you must consult with an immigration lawyer about your own personal situation. Be aware that the office of the Trustee and the Bankruptcy Court are very close to the office of Department of Homeland Security which monitors illegal aliens. If you file for bankruptcy, the Federal government which will include the DHS will have an access to your personal records such as whether you are filing your tax returns, whether you are not paying child support or you have committed certain crimes or infractions. Failure to file tax returns or failure to pay child support will affect your immigration application for benefits.

The immigration law requires that all applicants for permanent resident and citizenship have good moral character. Good moral character requires not having been involved in any crime especially crimes involving moral turpitude or fraud. Examples of crimes of fraud are:

Lying on your credit applications;
Using other persons social security number;
Using a fake social security number;
Fraud in dealing with creditors.

If the bankruptcy court found out that you have committed any one of the above infractions or crimes, you could be sent to prison and your immigration status will be in jeopardy.

Note: This is not a legal advice and you should consult with an immigration attorney about your case.

Immigration News

The U.S. Supreme Court upheld the Arizona Immigration Law requiring mandatory use of E-verify (internet based system) by checking legal work authorization of all employees and using sanctions for employers who intentionally hire illegal aliens by suspending or revoking their state license.

On March 1, 2011, we received an approval of adjustment of status by an Immigration Judge for an alien who was originally denied adjustment of status based on petition by employer.
On January 25, 2011, we received an approval of a self-petition by a battered spouse. Her entry with a different name was forgiven.

On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.

On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.
Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.

Bankruptcy News
Collection actions continue and you can be sued if you are in debt settlement.

Chapter 7 will eliminate all unsecured debts. If you are near retirement age, you must eliminate most of your debts.

Bankruptcy will stop foreclosure actions. If your trustee sale date is 10 days before, you can still file for bankruptcy.

If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.

Bankruptcy is cheaper, faster and safer than debt settlement which has no guaranteed success.
Preserve your health, eliminate stress and live a happy life by eliminating your debts which is the root of all problems.

Crispin Caday Lozano was born in the Philippines and a naturalized U.S. citizen. He is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys. He specializes in immigration law and bankruptcy law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a Certified Public Accountant, a Real Estate Broker and a Bachelor of Business Administration Cum Laude graduate. He has four offices which are located in Hayward, San Jose, and Cerritos, California. You can contact him at telephone number 1-877-456-9266.